How the FDA Is Picking Its Food Label Battles

That's the headline in a press release issued recently by the Center for Science in the Public Interest (CSPI), after one of CSPI's lawyer/investigators made a visit to the FDA cafeteria and found beverage products with labels claiming to support immunity, enhance memory, and "unlock the energy in foods."

Well, those products are sure enough there. In fact, products bearing claims are common in today's food and beverage marketplace. And we at FDA are not at all comfortable about it. These claims are symptomatic of a broad trend in the food industry—using nutrition-related claims to market products even when the scientific substantiation that consumers will actually benefit is weak or non-existent.

But FDA must pick its battles—and set its priorities—in a way that will best benefit the public health. To that end, we have launched a major campaign to improve nutrition labeling —a campaign whose goal is to ensure that consumers can rely on food labels to make informed choices, build healthy diets, and reduce their risk of obesity and chronic disease. And the top priority for us right now is to be sure consumers can readily find—on food labe—sound, up-to-date information about the nutritional profile of foods.

Going after them one-by-one with the legal and resource restraints we work under is a little like playing Whac-a-Mole, with one hand tied behind your back.

Thus we are working to update the Nutrition Facts Panel on the back of food packages, and we've launched an initiative to develop ways essential nutrition information and guidance can be presented on the front of food packages. These efforts are part of First Lady Michelle Obama's Let's Move initiative to reduce childhood obesity and all the health problems that flow from our kids being overweight.

We're also working on regulations and guidance for industry on how companies can make positive statements about a food's contribution to an overall healthy diet, how calories can be declared on the front of food packages, and how nutrition information may be provided on restaurant menus. Restaurant menu labeling is a major new initiative that was mandated by the recent health reform legislation and that FDA staff are working hard to implement on tight deadlines.

We think a lot of good will be done for consumers through these initiatives to provide reliable, science-based nutrition information that is not marketing-driven and that is available in convenient forms where it is needed. To their credit, many in the food industry are working with us to achieve this goal.

So what about the label claims CSPI found in the FDA cafeteria?

First of all, we agree that we need to not only push for a positive base of good, reliable information on food labels but also go after misleading labels. That's why, last fall, we informed the sponsors of the Smart Choices nutrition labeling program and logo that we had concerns about some of the nutritional criteria underlying it, and the program was withdrawn. In February, we issued about 20 enforcement letters to food companies that were marketing misbranded products. These letters cited a wide variety of labeling violations, with a focus on nutrition- and health-related labeling claims that did not meet legal requirements and could mislead consumers. Most of the companies are in the process of correcting these problems.

Without question, the February letters addressed just a small subset of the universe of products making dubious marketing claims. We will no doubt issue more letters on labeling violations, but I do not see us eradicating questionable claims of the kind CSPI flagged through a letter writing campaign or other means any time soon. We have no pre-market review authority over such claims, and, under prevailing legal doctrines concerning "commercial free speech," the evidentiary requirements placed on FDA to prove that such claims are misleading are significant and costly to meet. Moreover, meeting them requires tapping the same team of nutritionists, labeling experts, and lawyers who are working on our other nutrition initiatives.

We're also conscious of the cleverness of marketing folks, who, once we prove today's claim is misleading, can readily come up with another one tomorrow. Going after them one-by-one with the legal and resource restraints we work under is a little like playing Whac-a-Mole, with one hand tied behind your back.

So, we must make choices. The CSPI press release recommends establishing "a systematic regulatory framework to prohibit misleading health-related claims." This is a noble goal and one we can readily embrace conceptually. But it's a tall order, especially considering the other high-priority nutrition and food safety initiatives that compete for FDA's finite resources. We'll consider all possibilities, but, in the meantime, we call on the food industry to exercise restraint, and we welcome the scrutiny CSPI and the media give to this issue.

And now, if I may, a kind word on behalf of FDA's cafeteria ... it has a nice salad bar and a wide range of food choices, and, when I go down there for my soup at lunch, I see information on calories, saturated fat, and sodium posted for each selection. That's a good thing! And that's the information I seek to choose a healthy diet.